WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number: 20090086
OBJECTION BY: Worker
WORKER: Participated
REPRESENTATIVE: Worker
EMPLOYER: Not Participating
ISSUES
The worker is objecting to the July 10, 2008 decision which denied entitlement to wage loss benefits beyond January 15, 2001. The worker also objects to the September 12, 2008 Non-Economic Loss (NEL) quantum awarding the worker a 25 per cent impairment award for Psychotraumatic Disability.
HOW THE ISSUES AROSE
On December 11, 1997, while employed as a Senior Financial Accountant, the worker slipped on the wet mailroom tile floor, jarring her lower back. She was in her mid-thirties at the time of injury and had worked for her employer for approximately three years.
The worker’s claim for a low back strain was allowed for health care and wage loss benefits – she was absent from work for a brief period, from March 5, 1998 until March 30, 1998, following which she returned to partial hours of work. Shortly thereafter, she returned to full hours of work.
In February 2000, the worker experienced increased lower back pain and began working reduced hours. By June 2000, it was determined the worker had reached Maximum Medical Recovery (MMR) with a permanent impairment evident for her back injury. An ergonomic assessment of her worksite was arranged in July 2000 – the file information supports the ergonomist’s recommendation, i.e. the provision of an adjustable workstation, was subsequently implemented.
By November 2000, the worker had increased her hours of work to six per day. Given that the ergonomist had determined the worker’s pre-injury job duties were suitable with accommodation, it was concluded in a January 12, 2001 decision the worker should be able to return to her regular hours of work. As a result, partial wage loss benefits ceased.
The worker objected to the above decision, indicating her she could only perform partial hours of work per day. The file was referred to the Appeals Branch for review of this issue. The Appeals Resolution Officer who had carriage of the worker’s file at the time requested the WSIB Medical Consultant’s opinion on the matter – the opinion expressed, in summary, was that one would expect the worker should be able to work eight hours provided she work within her physical precautions and changed her positions frequently.
Although a hearing was scheduled on April 22, 2002 to hear the above issue, the objection was withdrawn at the request of the worker’s representative as the worker was scheduled to undergo a Functional Abilities Evaluation (FAE) in the near future.
Following receipt and review of the May 18, 2002 FAE, the adjudicator re-confirmed the decision to deny further partial wage loss benefits on the basis the worker’s position, with the implemented accommodations, remained suitable.
The worker’s file was once again referred to the Appeals Branch for review of the above issue. Following review of the file in March 2004 by an Appeals Resolution Officer, it was noted the worker had been terminated from her position at work as a result of downsizing – the file information confirms the head office where she had worked closed down on April 30, 2002. Given this new information, the file was withdrawn from the Appeals Branch so that the operating area could reconsider the decision to deny entitlement to partial wage loss benefits from January 15, 2001 and ongoing.
Upon review of the above new information and the worker’s arguments, the operating area referred the worker for a Labour Market Re-entry (LMR) assessment. Following assessment with the LMR service provider, it was determined the worker was capable of performing her previous Assistant Controller duties, her position at the time of lay-off, with some minor adjustments which would adhere to her physical precautions without further training. As a result, the adjudicator reconfirmed her prior decision to deny partial wage loss benefits from January 2001, and concluded the worker was not entitled to further LMR services.
In November 2006, the worker’s file was reviewed for entitlement to Chronic Pain Disability (CPD) – CPD was subsequently denied as it was determined the worker did not meet the criteria for CPD entitlement.
On May 2, 2007 the worker’s NEL quantum for her back impairment was increased to 17 per cent upon reconsideration.
The worker’s file was reviewed for entitlement to Psychotraumatic Disability in early 2008 – entitlement was subsequently granted in July 2008. On September 2, 2008, the worker was awarded a 25 per cent NEL quantum for her major depressive disorder, which, when combined with her lower back quantum resulted in a 38 per cent whole person impairment award.
The worker objected to the 25 per cent NEL quantum for her major depressive disorder, indicating her impairment fell within the upper end of the Class 3 impairment. The NEL quantum remained unchanged upon reconsideration. The worker’s file was subsequently referred to the Appeals Branch for review of the NEL award for psychotraumatic disability entitlement and also for the denial of partial wage loss benefits from January 15, 2001 onwards.
AUTHORITY
Operational Policy Manual documents:
11-01-01 Adjudicative Process
11-01-02 Decision-Making
18-04-14 Reviewing FEL Benefits
18-05-04 Calculating NEL Benefits
18-05-11 Assessing Permanent Impairment Due to Mental and Behavioural Disorders
19-02-02 The Goal of Early and Safe Return to Work (ESRTW) and the Roles of the Parties
19-04-06 Suitable Employment
RESOLUTION METHOD AND PROCESS
The worker’s representative concurred with a decision based upon the file information and provided a September 8, 2009 submission for consideration. The employer is not participating in the appeal.
ASSESSMENT OF THE EVIDENCE
In considering this objection, I have had regard for the evidence on file, the applicable law and policy and for the arguments presented.
Entitlement to partial wage loss benefits from January 15, 2001 onwards
It was the representative’s view the worker has been unable to work full hours due to the combination of the worker’s low back impairment combined with the related psychological difficulties. She indicated the worker had been employed in an accommodated sheltered job environment until her lay-off on April 30, 2002. The representative argued the worker’s decision to become self-employed as a bookkeeper was the best possible scenario for the worker as it permitted her to take breaks when necessary, and to take days off when she was not well. It was her position the worker’s benefits should be based upon her actual earnings in self-employment since January 2001.
Review of the file information confirms the worker first sought medical attention for her injury on February 12, 1998. A diagnosis of left-sided lower back strain was provided. Restrictions for physical activity included minimal heavy lifting and repetitive bending.
Assessment by an orthopaedic surgeon in March 1998 confirmed the diagnosis of mechanical lower back pain, with mild degenerative changes at the L5-S1 level. Surgical intervention was not recommended. This opinion was reiterated with a subsequent specialist’s evaluations.
The worker continued with her prescribed therapy and in 2000 was administered nerve block injections as a result of ongoing pain.
Examination in August 2000 by an orthopaedic surgeon re-confirmed ongoing limited range of lumbar movement estimated at about 2/3 to 80 per cent of normal. No obvious neurological findings were noted on motor, reflex, or sensory examination – no root tension findings were identified.
The WSIB medical consultant reviewed the worker’s file and recorded the following in part in memo #32:
“… The NEL award is not great, so one would expect that she should be able to work eight hours if she worked around her restrictions and changed positions, etc. frequently. It is impossible for me to indicate to a person with back pain that she should be able to accommodate eight hours. This is a non-medical issue and the only statement I can make is that she should be able to work within the back restrictions, which are permanent.”
The worker’s precautions for physical activity have essentially remained consistent since the date of injury. The May 2002 FAE provided the following more detailed precautions for physical activity: bending, climbing, crouching, stooping, kneeling, and reaching were restricted on a repetitive basis; 20-30 minutes of sitting and standing with periodic adjustments for postural changes as needed; 10-20 minutes of walking; occasional lifting capacity, limited lifting, lowering, pushing, pulling and reaching abilities. It was the opinion of the FAE assessor the worker demonstrated functional limitations in shoulder and waist levels and dynamic activities – the worker was considered to be limited in her activities of daily living, and as a result, a physical conditioning program was recommended.
In November 2002, the worker’s job duties were re-evaluated by a WSIB ergonomist. Following consideration of the FAE, the ergonomist re-confirmed the previous ergonomist’s July 10, 2000 opinion that the physical demands of the Assistant Controller position were within the worker’s medical precautions. It was noted a height-adjustable workstation had been provided to the worker, and the worker had been permitted to frequently change postures and alternate between sitting and standing at her own discretion. The ergonomist noted in his November 2002 report 90 per cent of the worker’s duties were performed while seated, and the physical demands of lifting, lowering, pushing, pulling and reaching were generally either not required in her position or were limited to answering the phone, accessing the adding machine or handling only binders. It was his view the worker’s tasks would not exceed her restrictions.
A subsequent ergonomic review in May 2003 by another WSIB ergonomist essentially re-confirmed the above opinion.
The adjudicator once again requested the WSIB medical consultant’s opinion in May 2003 with respect to the worker’s level of impairment. The opinion essentially reiterated the prior WSIB medical consultant’s opinion – the following was recorded in part in memo #42:
“This now 41 year old has an ongoing significant back condition which requires ongoing restrictions and work accommodations. Based on the ergonomist review of the FAE and the job duties, while several restrictions and accommodations are required on an ongoing basis, provided these are in place, the worker should be able to perform full time duties. It is only when the precautions or restrictions are not followed when the worker would not be expected to work. Microbreaks and an accommodative and supportive environment would be required.”
I note the LMR service provider in September 2004 was also of the view the position of Assistant Controller was suitable in the general labour market. Taking into consideration the worker’s transferable skills, education, aptitudes, minimal strength requirements in the Assistant Controller position, further LMR services were not recommended.
The ensuing medical reports submitted to file re-confirm the worker’s physical precautions noted on the FAE, which have essentially remained unchanged to date.
Following careful consideration of the medical evidence, I find it supports the worker has remained partially impaired with precautions for physical activity confirmed in the FAE. Although the worker has argued she has been unable to increase her hours of work beyond six per day, there have been no objective medical findings submitted to support a decrease in the worker’s regular hours of work. All specialist’s reports have confirmed normal neurological examinations.
The worker’s job duties have been reviewed by three WSIB ergonomists throughout the years and all have confirmed the worker’s tasks did not exceed her physical precautions, as did the LMR service provider. The worker, as an Assistant Controller, would have the ability to self-modify and alternate her work tasks – she would be able to switch between sitting, standing, taking micro-breaks, and performing stretching activities when needed. I have also had the opportunity to review the psychological reports submitted to file, and although depression and anxiety are recorded, in my view, evidence to further limit the worker from a physical perspective is unsupported.
Consequently, having regard for the evidence in its totality, I find the medical information supports the worker would not be restricted from performing full hours of work provided she adheres to her permanent physical precautions.
NEL quantum
The worker’s representative argued the NEL quantum of 25 per cent did not adequately reflect the worker’s psychological impairment. It was felt the worker fell within the upper range of the Class 3 impairment.
Policy 18-05-11, Assessing Permanent Impairment Due to Mental and Behavioural Disorders, records the following in part with respect to a Class 3 impairment:
“Class 3, Moderate impairment (20-45%) - impairment levels compatible with some but not all useful function There is a degree of impairment to complex integrated cerebral functions such that daily activities need some supervision and/or direction. There is also a mild to moderate emotional disturbance under stress. In the lower range of impairment the worker is still capable of looking after personal needs in the home environment, but with time, confidence diminishes and the worker becomes more dependent on family members in all activities. The worker demonstrates a mild, episodic anxiety state, agitation with excessive fear of re-injury, and nurturing of strong passive dependency tendencies. The emotional state may be compounded by objective physical discomfort with persistent pain, signs of emotional withdrawal, depressive features, loss of appetite, insomnia, chronic fatigue, mild noise intolerance, mild psychomotor retardation, and definite limitations in social and personal adjustment within the family. At this stage, there is clear indication of psychological regression. In the higher range of impairment, the worker displays a moderate anxiety state, definite deterioration in family adjustment, incipient breakdown of social integration, and longer episodes of depression. The worker tends to withdraw from the family, develops severe noise intolerance, and a significantly diminished stress tolerance. A phobic pattern or conversion reaction will surface with some bizarre behaviour, tendency to avoid anxiety-creating situations, with everyday activities restricted to such an extent that the worker may be homebound or even roombound at frequent intervals.”
The representative argued for an increase in the worker’s NEL quantum on the basis the worker continued to be pain-focused, was socially isolated, was experiencing financial difficulties, was distressed, and had concentration issues and difficulties with self-esteem. In addition, she also pointed out the recent 2008 psychiatric reports recorded a Global Assessment of Functioning (GAF) ranging between 50 to 65.
I note the medical reports support the worker has chronic pain with secondary depression, anxiety, poor concentration, irritability, low energy levels and insomnia. It is recorded her anxiety is related to her inability to function and to concerns about financial survival. With respect to the worker’s appetite, the medical reports, specifically, Dr. Ali’s June 2008 report confirms it has been undisturbed. More recently, the worker’s diagnosis was re-confirmed – she has a Pain Disorder associated with both psychological factors and a general medical condition, and a mild to moderate major depressive episode. I note the May 13, 2008 Centre for Addiction and Mental Health report did not impose psychological restrictions.
I have carefully reviewed the various psychological and psychiatric reports submitted to file. In order for the worker’s NEL quantum to be increased, the worker would be required to fit the majority of the criteria in the higher range of the Class 3 impairment. As noted in the above policy, in the higher range of impairment, a worker generally tends to withdraw from the family, develops severe noise intolerance and significantly diminished stress tolerance. In addition, a phobic pattern or conversion reaction will surface with some bizarre behaviours, with activities restricted to the extent that the worker is frequently homebound and room bound.
In comparing the file medical reports to the Class 3 description of a Moderate Impairment, I find the worker does not meet the criteria for the higher range of impairment. Rather, I find the medical documents support the description contained within the lower range of the Class 3 impairment, i.e. the worker is still capable of looking after her personal needs, however, becomes more dependent upon family for all activities, she demonstrates a mild episodic anxiety state, physical discomfort with persistent pain, depressive features, insomnia, and chronic fatigue.
Following careful consideration of the file evidence, I find the worker’s NEL quantum for major depressive disorder has been appropriately assessed at 25 per cent.
CONCLUSION
I conclude the following:
The worker is not entitled to partial wage benefits from January 2001; and,
The NEL quantum of 25 per cent for the worker’s major depressive disorder is appropriate.
The worker’s objection is therefore denied.
DATED November 20, 2009
L. Diaz
Appeals Resolution Officer
Appeals Branch